Earle & Earle
[2022] FedCFamC1F 16
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Earle & Earle [2022] FedCFamC1F 16
File number(s): PAC 2016 of 2018 Judgment of: HANNAM J Date of judgment: 21 January 2022 Catchwords: FAMILY LAW – COSTS – Where the father seeks orders that the mother pay his costs in the parenting proceedings on an indemnity basis – Where the mother opposes the father’s application and seeks that it be dismissed – Where the father contends that the mother’s conduct in the proceedings warrants a costs order in his favour – Where the mother’s mental health was a significant concern in the parenting proceedings about which findings were made – Where in the context of the mother’s mental health the Court does not consider it just to make a costs order against her and there is otherwise insufficient justification to depart from the usual rule that each party bears their own costs – Father’s application dismissed except so far as it relates to an order that he be reimbursed for funds paid by him representing the mother’s half-share of the costs of the expert report. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 r 15.47
Cases cited: D & D (Costs) (No. 2) (2010) FLC 93-435
Penfold v Penfold (1980) 144 CLR 311
Division: Division 1 First Instance Number of paragraphs: 89 Date of last submission/s: 20 October 2021 Place: Parramatta Solicitor for the Applicant: Self-Represented Solicitor for the Respondent: Somerville Legal ORDERS
PAC 2016 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EARLE
Applicant
AND: MS EARLE
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
21 JANUARY 2022
THE COURT ORDERS THAT:
1.The mother reimburse the father for funds paid by him representing the mother’s half-share of the costs of the expert report dated 7 November 2019.
2.The father’s application for costs is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Earle & Earle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties (“the mother” and “the father”) have been involved in highly acrimonious proceedings concerning the future parenting of their two young children and property settlement since 2018.
The proceedings were bifurcated, with the parenting dispute being determined first. At the conclusion of the parenting proceedings in August 2021, each party sought an order that the other pay their costs in relation to that part of the dispute. It was agreed that their respective costs applications could be dealt with in chambers on receipt of written submissions.
The father seeks an order that the mother pay some of his costs on an indemnity basis.
The mother did not ultimately pursue an order that the father pay her costs in the proceedings, but opposes the father’s application and seeks that it be dismissed. She further submits that if the Court were minded to make an order for costs against her, such costs be fixed or assessed in accordance with r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs, and if so, whether these circumstances are exceptional to justify that an order be made that the mother pay the father’s costs on an indemnity basis.
BACKGROUND
The mother is 47 and the father is 50. They married in 2013 and had a son in 2016 and a daughter in 2017 (“the children”). The relevant background to the parties’ dispute is outlined in my Reasons for Judgment[1] delivered in August 2021 with respect to final parenting orders (“the August 2021 Judgment”).
[1] Earle & Earle (No. 3) [2021] FamCA 568.
It suffices to say for the purposes of the current application that shortly after the parties separated in 2018, the father initiated parenting proceedings. In the course of the litigation, each parent raised various concerns about the children’s safety in the care of the other parent.
The mother, in particular, alleged that the father and other members of the paternal family had been physically abusive towards the children. It had also been her case that the father had several shortcomings in his ability to parent the children, claiming at one point, for example, that the father’s home environment was “hazardous” and “dangerous”. Ultimately, the mother did not pursue any of her allegations of risk against the father at final hearing and rather proposed orders that would see the children maintain a meaningful relationship with both parents.
The gravamen of the father’s case against the mother, which assumed significance at final hearing, was allegations that the mother suffered from serious mental health difficulties that affected her parental capacity. It had been a significant theme in the parenting proceedings that the mother, and to a large extent a maternal uncle who formed part of the mother’s household for some time (“the maternal uncle”), held firm ‘paranoid views’ about matters related to the murder of the maternal grandfather many years ago. Included in these views were serious misgivings about interstate police who investigated the maternal grandfather’s death and concerns that police were influencing various lawyers retained by the mother and were conspiring with them to “sabotage” her family law case. There were also concerns held by the mother and maternal uncle that the father was somehow also involved in this “conspiracy”.
A court-appointed single expert (“the expert”) assessed the family on two separate occasions and gave evidence about certain risk issues relating to the children including those arising from the mother’s mental health difficulties.
In summary, the expert was initially of the view that the mother had a “paranoid stance” in relation to the father’s involvement in a conspiracy with police, and when assessed a second time in 2020, the mother’s paranoid beliefs regarding the father had evolved into “delusions”. This opinion was contained in the expert’s second report. When cross-examined at final hearing, the expert maintained that the mother’s psychiatric symptoms were consistent with a diagnosis of schizophrenia and were disrupting the mother’s functioning in such a way that unless assertively treated, the children would be placed at risk in her care.
In the course of final hearing commencing 9 November 2020, the mother sought to challenge the accuracy of the expert’s opinion with a report by an adversarial expert (“the mother’s expert”). The proceedings were then adjourned part-heard to allow for a psychiatric assessment of the mother by her expert.
A report by the mother’s expert was prepared in January 2021 and in that report, the mother’s expert opined that it was more likely that the mother had a “delusional disorder” than schizophrenia. In his opinion, the mother’s delusional disorder had developed either in her alone or in concert with the maternal uncle.
A significant issue to be resolved at final hearing was the weight to be attached to the opinion of the expert and the mother’s expert. In this regard, I observed in the August 2021 Judgment the following matters that emerged from the evidence:
·Both experts agreed at least that the mother’s beliefs were systematised into a delusional system involving a vast conspiracy; and
·Differences in the specific diagnoses between the expert and the mother’s expert were ultimately not of great moment in the proceedings. Both experts were of the view that until the mother is treated (including, for example, with anti-psychotic medication), any time the children are to spend with her should be supervised to mitigate the risks associated with potential impairment in her capacity to care for them.
Notwithstanding the serious concerns about the mother’s mental health and the potential risks she posed on this basis, there was at no stage any proposal for the children to have no or very limited contact with her even if she did not comply with the recommended treatment. The mother had for some time following separation been the children’s primary carer. Although there were various occasions on which each parent withheld the children from the other parent which ultimately resulted in the children living with the father at the time of final hearing, both the expert and the mother’s expert agreed that it was in the children’s best interests for them to have ongoing and quite regular contact with their mother in the future.
The father proposed final orders, which the Independent Children’s Lawyer (“the ICL”) supported, that would see him hold sole parental responsibility for the children, and that the children continue to live with him and spend defined time with the mother on a supervised basis. It was further proposed that the requirement for supervision of the mother’s time could be revisited on application by either parent 24 months from the making of orders.
The mother diametrically opposed the father’s proposal, maintaining that she posed no unacceptable risk of any kind to the children. She proposed that the parties equally share parental responsibility for the children conditional upon certain restraints on the father from discussing the maternal grandfather’s death and denigrating members of the maternal family, and also proposed that the children live with her and spend increasing time with the father graduating to substantial and significant time in his care.
On 5 August 2021 I made final orders in the terms proposed by the father and supported by the ICL. In reaching my decision, I attached significant weight to the opinions and recommendations of the expert regarding the mother’s mental health and prognosis, and attached some weight to the evidence of the mother’s expert about the same matter.
In making the final parenting orders, and considering the relevant risks to the children in these proceedings, I also attached weight to each parent’s capacity to meet the needs of the children and in particular the son who has several special needs. So far as the mother’s parental capacity was concerned, this matter overlapped significantly with the issue of her mental health difficulties.
At the conclusion of the court event on 5 August 2021 each parent made an application that their respective costs in the parenting proceedings be paid by the other, and both agreed that their respective applications could be determined in chambers on written submissions.
The father relies on his Minute of Order dated 19 August 2021 and written submissions and Financial Statement filed 2 September 2021.
The mother no longer presses an application that the father pay her costs in the proceedings and rather responds to the father’s costs application by way written submissions filed on her behalf on 20 October 2021.
On 2 November 2021 the father provided further submissions and evidence in reply to the mother’s written submissions filed in October 2021. As no provision was made for the filing of submissions in reply, those further submissions filed by the father were not read for the purposes of this judgment.
THE APPLICATION
As outlined in his Minute of Order dated 19 August 2021, the father seeks that the mother pay certain costs of and incidental to his parenting application on an indemnity basis. In particular, he seeks an order that the mother pay his costs in relation to the parenting proceedings from 2 October 2020 to the date of these orders.
In the alternative, the father seeks that his costs from 2 October 2020 be paid on an “ordinary basis” in accordance with the following schedule:
·$6,565.00 (being 50% of the costs paid by the father on the mother’s behalf for the single expert report);
·$251.50 (pursuant to Orders made by a Registrar on 25 July 2019);
·Costs in relation to a Notice of Objection to Subpoena filed 9 August 2020 in an unspecified sum;
·Costs in relation to responding to a Notice of Objection to Subpoena filed 3 December 2018 in an unspecified sum;
·Costs in relation to responding to an Application in a Case filed 11 January 2019 in an unspecified sum; and
·Costs for the preparation and appearances at the court events of 3 April 2019, 25 July 2019, 10 September 2020 and 23 September 2020, as assessed on an indemnity basis.
As I understand the written submissions made on behalf of the father, he contends that from October 2020 the mother was refusing to accept the opinion of “qualified experts in the field” and also did not accept “appropriate compromised positions”. The father argues that the conduct of the mother from this point in time and her maintenance of a proposal that was inconsistent with the expert evidence and ultimately unsuccessful, are particularly relevant matters in relation to this more limited costs application. As can be seen he also seeks costs in respect of four court events that predate 2 October 2020.
The father further seeks an order that if costs are not ordered to be paid by the mother on an ordinary basis as particularised above, the she pay his costs for the same particular four court events on an indemnity basis and other unspecified sums relating to the preparation of the expert report and specific applications filed throughout the proceedings.
According to the father’s proposed Minute of Order, any costs order made pursuant to this application is to be paid by the mother simultaneously with any payment to be made to her pursuant to any final property distribution in the property settlement proceedings. In other words he proposes that any costs order in his favour be taken from the mother’s share of the property available for distribution in the property settlement proceedings (which are still pending).
The mother opposes the father’s application in its entirety and seeks that it be dismissed. She otherwise proposes that if I were satisfied that a costs order should be made against her, those costs be by way of an assessment pursuant to the Rules.
THE LAW & DISCUSSION
Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs. That principle is subject to subsection (2) which gives the Court a discretion to make an order for costs in any circumstances that in the Court’s opinion justify such an order. Any such order pursuant to section 117(2) is “as the Court considers just”.
The High Court in Penfold v Penfold[2] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[2] (1980) 144 CLR 311.
Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs. The matters relevant in this case are considered below.
The financial position of each of the parties to the proceedings
The father contends that he is under “significant financial strain” as a result of various factors including the children’s health expenses, the cost of the children’s supervised time with the mother, the costs of the litigation and the impact of the COVID-19 pandemic on his business.
In his Financial Statement filed for the purposes of these proceedings, the father deposes that he is self-employed as a director of his own company and that his average weekly income is $1,959. He further deposes that the total value of property owned by him is $593,183 (with the main asset being his share of the former family home), and that he has superannuation entitlements in the sum of $286,418 and liabilities totalling $208,901. According to his Financial Statement, those liabilities comprise of a half-share of the mortgage over the former family home, credit card loans and funds owed for legal fees.
The father otherwise deposes that he has no financial resources and that his average weekly expenses including in relation to the daily care of the children total $1,413.
In suggesting that it is well within the Court’s discretion to make a costs order against the mother, the father refers to the mother’s financial circumstances and in particular a Financial Statement previously filed by her in the substantive proceedings dated 22 May 2020. He submits that this Financial Statement was filed when the mother was financially responsible for the children’s living expenses, and therefore is not a true representation of the mother’s current financial position given the children are no longer in her primary care pursuant to court orders. The father further submits that irrespective of the mother’s financial circumstances, any costs order made against her may be met by way of a reduction in the cash distribution she may receive at the conclusion of the parties’ property dispute.
The mother disputes that she has any capacity to satisfy an order for costs. She submits that she is unemployed and relies heavily on government allowance and significant financial support from members of the maternal family to meet her daily living expenses.
While the mother did not file a current Financial Statement, she annexes to her written submissions a Financial Statement in which she deposes that her average weekly income is about $394 and her weekly expenditure $1,067. She further indicates that she has $194 in superannuation and has debt of about $394,000.
In written submissions made on her behalf, it is also argued that unlike the father who is employed and earning an income, the mother has limited prospects of engaging in any form of employment by virtue of her mental health condition. Although the mother apparently continues to dispute the expert’s evidence regarding her diagnosis of schizophrenia, she argues that if her functioning is impaired as was accepted by the Court, then her capacity to earn an income is limited.
The mother otherwise argues that she has only one other asset of value, being a 50% interest in the former family home, and notes the value of that property is disputed by the parties.
Having regard to each of the party’s financial positions as summarised, I am of the view that the mother has some financial capacity to satisfy an order for costs and that the father equally has financial capacity to pay his costs. Although both parties depose to having no financial resources, it is a common position between them that they each own an interest in the former family home. While proceedings relating to property distribution are still ongoing, both assert an entitlement that would see them each receive between $300,000 to $500,000 when those proceedings are completed. In these circumstances, I am satisfied that any costs order made against either party may be secured against their respective shares of any future proceeds of sale of the former family home.
In any event, even if I were to accept that the parties were in limited financial positions as they each contend, impecuniosity is no bar to the making of an order for costs.[3]
[3] D & D (Costs) (No. 2) (2010) FLC 93-435.
The conduct of the parties to the proceedings in relation to the proceedings
As previously noted, the father’s application that the mother pay his costs contains a primary order and various alternatives. His primary order is that the mother pay his costs in relation to the parenting proceedings from 2 October 2020 to the date of these orders on an indemnity basis, or in the alternative on the ordinary basis.
It is apparent from the submissions filed on the father’s behalf that he identifies the date of 2 October 2020 as having some significance as it was on this date that the expert’s second report was finalised. In that report the expert had recommended that the children live with the father and spend supervised time with the mother and that the mother receive assistance with respect to her mental health difficulties.
In summary, it is the father’s case that following the release of the expert’s second report to the parties, he adopted the recommendations of the expert and made an application that all previous parenting orders be discharged and that a parenting arrangement along these lines be instituted immediately as interim orders and as final orders following final hearing. It appears that the father attaches particular weight to the fact that interim orders were made largely in accordance with his proposal and that the mother’s proposal in the proceedings and conduct in the proceedings following the release of the expert report, was contrary to the expert’s recommendations and the views indicated by the ICL and the Court. This conduct, he argues, resulted in a requirement that he incur unnecessary legal costs to protect the best interests of the children.
As noted, the father also seeks costs both in his primary application and in the alternative in respect of preparation and appearance at four specific court events being 3 April 2019, 25 July 2019 and 10 and 23 September 2020 which all predate 2 October 2020. In the alternate orders, he also seeks costs relating to preparation and appearance at the final hearing on 9 November 2020 and between 10 to 13 May 2021.
It is the father’s contention generally that the mother conducted the proceedings in a manner that caused him to incur significant and unnecessary expense.
The court event on 3 April 2019, had been listed for the hearing before a Senior Registrar of the father’s application for interim parenting orders. The father contends that he was ready to proceed on this day but the mother who was then legally represented made serious allegations of collusion and corruption between her own lawyers, the father and Victoria Police. As a result of these allegations the hearing was adjourned and directions were made by the Senior Registrar for the mother to file evidence and give greater particulars in relation to her allegations and that she serve relevant documents on Victoria Police. In the ensuing days, the mother’s legal representatives withdrew and the mother did not comply with orders to provide particulars as directed.
So far as the Court event on 25 July 2019 is concerned, costs have already been awarded. Rather than pursue enforcement of those orders, which the father submits have not been complied with, the father seeks to “account for” that costs order in this application and have the sum awarded deducted from any property settlement orders that may be made in the future.
The next specific court date in respect of which costs are sought is 10 September 2020 when both the parenting and property proceedings were listed before a Registrar. It appears that the proceedings had not progressed as the mother had recently changed solicitors and wished to amend her application for property orders. However, it does not appear that the mother’s lack of preparedness on this occasion ultimately had any impact on the parenting proceedings which were shortly thereafter bifurcated and proceeded in the usual way and with some expedition including the obtaining of an updated expert report.
The last court event prior to 2 October 2020 was a telephone attendance before a Registrar on 23 September 2020 in relation to an objection to subpoena filed by the father. The mother did not attend on this occasion, nor had she complied with directions made on 27 August 2020 in relation to that application. Ultimately the father was wholly successful with respect to his objections on 23 September 2020.
The father’s contentions about each of the last-mentioned specific court events, and the mother’s conduct in the proceedings after 2 October 2020 (being the date of the expert’s second report), including the final hearing commencing on 9 November 2020, have similar themes. In particular, the mother’s spurious allegations against the father made from at least April 2020 were a salient feature of the parenting proceedings. Those allegations, as explored in the August 2021 Judgment, included that the father, along with police and various lawyers retained by each of the parties, the ICL, as well as other third-party government organisations, were conspiring to act corruptly and to adversely affect the mother’s case. The father notes that the mother’s conduct in this regard founded his concerns about her mental health and functioning as a parent and that these concerns persisted throughout the litigation.
It is also a matter of significance in submissions on behalf of the father that the mother’s tendency to discharge her lawyers and obtain new legal representation was a recurring issue in the proceedings which has had significant financial implications. In particular, it is noted in the father’s submissions that the court event on 1 November 2020 was the first day of the final hearing of the parenting dispute and it had previously been expected that the proceedings would be determined at that time.
In submissions made on the father’s behalf, it appears to be suggested that one of the reasons that the final hearing did not commence in any meaningful way on that date is because the mother had recently engaged new solicitors and counsel. However, there had been a court event the previous week in which the allocated hearing dates were vacated except for the first day (1 November) which was retained for the purposes of cross-examination of the expert. It was foreshadowed that other applications may be made, such as for the appointment of an adversarial expert who may also need to consider the question of whether a litigation guardian should be appointed for the mother.
On 1 November 2020 the Court and the parties were ready for cross-examination of the expert to proceed and arrangements had been made for the expert’s attendance for this purpose. However, this cross-examination did not proceed as, for reasons which have never been adequately explained, the ICL did not comply with directions about the provision of updated evidence to the expert and the expert was not in a position to proceed given the large volume of material she was required to read for the purposes of cross-examination which had not been provided to her.
The father made application at the time for a costs order against the mother and the ICL related to costs thrown away at this court event. Although the costs application against the mother was reserved (and is now under consideration) I commenced hearing the application with respect to the order sought against the ICL. This was then adjourned for the purposes of the father and the ICL filing further material related to this application. Neither the father nor the ICL provided this material and the father’s application against the ICL does not appear to have been subsequently pursued.
In written submissions made on the mother’s behalf, it is argued that when considering the mother’s overall conduct in the proceedings as contended by the father, the Court should have regard to its own findings regarding the mother’s mental health and the opinions and evidence from both experts.
It is otherwise the mother’s case that the father himself also failed to comply with court orders such as those requiring that he meet half of the cost of supervision of the children’s time with the mother. There was no dispute at final hearing that the children would not have received the benefit of spending time with the mother had she not paid the full costs of supervision (being almost $5,000) as a consequence of the father unilaterally deciding not to pay his half share of those costs as ordered.
It is also submitted on the mother’s behalf that her general conduct and steps she had taken throughout the proceedings had been in accordance with legal advice and on this basis should not attract a punitive costs order against her.
I accept the mother’s submission that the father’s non-compliance with the order that he pay a half share of the supervision costs directly resulted in her incurring $5,000 in order to ensure that the children were able to spend time with her over a period of some months.
In the circumstances of this case, I accept the father’s submission that the mother’s conduct with respect to the proceedings generally contributed to delay and difficulty in reaching a conclusion to the proceedings, which may well have resulted in costs being thrown away. However, as argued on behalf of the mother, this conduct must be viewed in the context of the mother’s mental health difficulties and the impact these difficulties had on her overall functioning. I attach particular weight to this matter when considering whether a costs order should be made against the mother, and is one to which I will return.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The father further argues that a costs order should be made against the mother given she was wholly unsuccessful in the proceedings. In this regard the father attaches considerable weight to the mother continuing to press for final orders which were contrary to the opinions and recommendations of the court-appointed expert and the final orders ultimately made in the proceedings.
Each of the specific four court events between April 2019 and September 2020 were resolved in favour of the father and he contends that on each occasion the mother either failed to engage properly in the proceedings or pursued a case as to a particular issue which was wholly unsuccessful.
So far as the mother’s position in the substantive proceedings generally is concerned, I accept that she was wholly unsuccessful in the sense that orders were made generally in terms recommended by the expert which were largely endorsed by the father and the ICL. This is particularly the case in relation to the questions of where the children were to live and parental responsibility.
However, there was significant time in the proceedings devoted to the issue of the orders that most appropriately and properly fostered the children’s relationship with the mother given that despite the parenting challenges associated with her mental health condition, the children’s primary attachment was with her and they undoubtedly receive a benefit from having a relationship with her.
The final orders made were not entirely in accordance with the father’s proposal and in the complex circumstances of this case the Court is unable to state simply that one party was “wholly successful”.
Against this background, I attach some weight to the fact that the mother had limited success in the parenting proceedings when considering the father’s application for a costs order in his favour. However, this must be balanced together with all of the other relevant factors including, as foreshadowed, the mother’s mental health difficulties which I consider is a weighty matter in determining his application.
Such other matters as the court considers relevant
As touched upon earlier in these Reasons, the mother’s mental health and functioning is in my view a particularly relevant matter to which the Court must have regard.
Significant discussion was dedicated to this issue in the August 2021 Judgment given it loomed large in relation to the need to protect the children from harm.
Various references were also made in that Judgment to the expert’s opinion regarding the mother’s mental health and the associated risks she posed to the children. Under the heading “[t]he expert’s supplementary report and recommendations” the expert’s most recent assessment of the mother’s psychological state conducted in late 2020 was summarised as follows:
86 … following her second assessment the expert was of the view that the mother’s paranoid beliefs regarding the father and persistent and fixed belief that he and various organisations are involved in a conspiracy against the mother and her family, had evolved into delusions. The expert opined that the mother did not have any insight into her psychotic symptoms or the effect that they were having on her functioning.
87The expert was of the view that the mother was suffering from a psychotic illness, most likely schizophrenia. The mother’s psychotic disorder, in the opinion of the expert, had resulted in a significant deterioration in the level of the mother’s functioning as well as some observed disorganised and unusual behaviour. The expert opined that consequently the children are potentially at risk of exposure to unpredictable behaviour when in the mother’s care, unless she is assertively treated.
88The expert opined that the mother’s paranoid delusional beliefs about the father and her persecutory interpretation of life experiences potentially place the children at risk…
(emphasis added)
The mother attempted to challenge the expert’s opinion with evidence from an adversarial expert and continues to dispute the accuracy of the expert’s assessment in these proceedings. However, as discussed in the background of these Reasons, concerns held by the expert about the mother’s mental health were generally echoed by the mother’s expert, notwithstanding the disparity in their specific diagnoses. In other words, each of the experts agreed about the presence in the mother of psychotic symptoms that had an effect on her functioning.
Although the expert’s concerns about risks that she considered the mother posed to the children intensified after the expert’s second assessment of the mother in June 2020, observations about the mother’s paranoid and unusual beliefs and some concerning likely associated conduct had been observed by the expert and others well before this second assessment. As was noted in the August 2021 Judgment, the father raised concerns about mental health difficulties he believed the mother was experiencing from at least March 2019 with the family consultant with whom he met at that time for the purposes of the Child Responsive Program.
When interviewed at this time by the family consultant, the mother also raised questions about whether the father using legal processes as a form of control over her and while denying that she was experiencing mental health difficulties, told the family consultant that she believed that interstate police who investigated the death of the maternal grandfather over 30 years ago were influencing the family law proceedings.
Following the recommendations of the family consultant, the expert, a forensic psychiatrist, was appointed to provide an opinion in the proceedings.
Shortly after the first of the specific court events for which the father seeks costs, on 10 April 2019 there was a court event in which the mother represented herself. The transcript of the proceedings that day indicate that the mother confirmed the Registrar’s understanding that the mother was asserting that interstate police had influenced some of her former lawyers in the proceedings and that the lawyers then tried to sabotage her case by not filing documents as required.
When seen by the expert on the first occasion in June 2019, the expert assessed on the basis of her clinical evaluation and collateral information that the mother had a “paranoid stance” in relation to the father’s involvement with police, albeit that at that time the expert considered this stance was a consequence of the mother’s past experiences incorporated into her world-view.
In summary, I accepted at the final hearing that the mother’s mental health difficulties (which were presenting as a psychotic illness from at least June 2020 when the mother was assessed by the expert for a second time), had been evolving over time. The unusual and paranoid thinking which the expert originally considered was part of the mother’s world-view had been present for some time prior to the first of the specific court events in respect of which the father now seeks costs, namely 3 April 2019. Indeed, the father’s case was that the parties’ marriage began to deteriorate in about January 2018 and from about this time the mother began expressing the unusual beliefs about a conspiracy, collusion or connection between the investigation into her father’s murder many years before and the father’s conduct.
In my August 2021 judgment I accepted the opinion of the expert that the mother did not have any insight into her psychotic symptoms or the effect that they were having on her functioning. I also accepted that the mother’s observed disorganised and unusual behaviour had been present to some extent throughout the entirety of the proceedings. In circumstances where these features of the mother’s functioning and behaviour are central to the father’s contentions about her conduct, I do not consider it just to attach significant weight to this matter as the father contends.
Rather, I consider the matters set out in the foregoing paragraphs are weighty in determining that these circumstances do not justify an order for costs. This is particularly the case when it appears on the evidence before me that the father is in a superior financial position than the mother.
In written submissions made on her behalf the financial consequences for the mother are set out if the orders are made as sought by the father. These are that the mother will have reduced capacity to obtain necessary medical treatment to address her mental health difficulties, reduced capacity to live independently of the maternal uncle and great difficulty and ultimately an inability to meet the ongoing half share of the costs of supervision of the children’s time. It is submitted that the father’s orders if made would be particularly punitive as he seeks that any such order be satisfied by deduction from the mother’s share in the property settlement proceedings. Given the limited property for distribution and the father’s contentions in those proceedings such orders sought by the father may even result in the mother owing a debt to the father. In my view weight must be given to these matters when determining this application.
CONCLUSION
Having regard to the foregoing matters, and attaching particular weight to the mother’s mental health difficulties, I am of the view that there is insufficient justification to depart from the usual rule that each party bears their own costs. As I do not consider there are circumstances that justify a departure from this rule, I do not need to consider the father’s submissions with respect to indemnity costs. Accordingly, the father’s application that the mother pay his costs is dismissed, except so far as it relates to an application that the mother share the expenses of the expert’s report.
Reimbursement of funds paid for an expert report
The father seeks as part of his costs application that the mother pay costs associated with the preparation of the expert’s initial report.
Orders were made with the parties’ consent on 19 March 2019 that a Chapter 15 expert be appointed for the purposes of preparing a report relating to the welfare of the children. One of the orders provided that “the cost of the expert report be funded by the parties equally”.
It is the father’s case that the mother contributed “only to the deposit for the first report”. The father does not specify in money terms how much of the mother’s contribution represented the full amount owing to the expert, there being also no evidence provided of the total cost of the expert report.
The father further submits that the “most substantial invoice” for the expert’s initial report was met by him in full, although there is no evidence of this invoice beyond a reference to its allocated invoice number. He also claims that a further request for funds in the sum of $2,500 was made to complete the preparation of the expert report but he does not provide evidence to support this assertion.
In summary, the father merely specifies in his written submissions that the mother’s half share of the costs for the expert’s first report owed to him is $6,565.00. Through his costs application, the father seeks that this amount be reimbursed.
The mother does not address the father’s application regarding the cost of the expert report in her written submissions but states that her primary position is that there should be no order as to costs made in the father’s favour as sought by him or at all.
There are several uncertainties regarding the full amount owed to the expert for the preparation of her initial report and the amount, if any, that has been paid by the mother. However, it is trite to observe that Rule 15.47(1) of the Family Law Rules 2004 provides that the parties are equally liable to pay a single expert witness' reasonable fees and expenses incurred in preparing a report, unless otherwise ordered by the Court. As noted earlier, both parties also agreed and orders were made in accordance with this agreement that the cost of the expert report be shared equally between them.
In these circumstances, should there be any shortfall in the equal share of the expert’s report required to be paid by the mother that has been solely paid by the father to date, the mother should reimburse the father for that amount. Orders are made accordingly.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 21 January 2022
2
0